CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

How Fast Can My California Lawsuit be Filed???

Posted in Litigation, Podcasts

Whoa, slow down, that’s a loaded question.  Filing a lawsuit is easy, right?  You just draw up a few papers, file them with the Court, and get what you want in a few days…actually, no.  It’s not like that AT ALL.  In fact, most Trust and Will lawsuits take some time to plan out, draft and file with the Court; but why is that?

First, you should know that the law is not black and white.  And the law is never applied in a vacuum, instead law must be applied to a set of facts.  The problem is that all the facts and evidence cannot be fully known when you are first drafting a Trust or Will lawsuit because you just don’t have time to uncover the entire truth.  So you work with what you know and you put the facts together as best you can.  Those facts then need to be blended with the law to come up with your legal arguments in the final draft of your lawsuit that is filed with the Court.  Bottom line: this takes time.  To have a good filing, you need to put in the time and effort to make it so.

Second, successful lawyers are already busy with other cases.  So while you Trust and Will lawsuit is undoubtedly important, we lawyers need to make time to fit it into our schedules.  Not always easy, but doable with some patience and work.  Bottom line: it may take a day or two to get started on your Trust or Will lawsuit.

Third, you are the final (and most important) editor of your lawsuit filing.  Yes, you, the client, play an important role in preparing a Trust or Will lawsuit for filing.  You are the one with knowledge of the facts, the past, the history, the backstory—call it what you will, you matter.  And people are different, some prefer a great degree of detail while others prefer a general overview.  No one way is right, both have their advantages and disadvantages.  But as a client, you have the right (maybe even the obligation) to review and edit the court filing your lawyers prepare.  Your input is vital, but your input can also take time.  Time for you to review and comment, time for the lawyers to input your changes or discuss your comments with you, and time to blend this all together into the best possible court filing you can have.  Remember, your court filing need not be perfect, but it should be as good as we can make it with the time we have.  Bottom line: your input matters, but it also adds time to the process.

So exactly how long should it take to prepare and filing the opening filing for you Trust or Will lawsuit?  Typically about two weeks or so.  Sometimes less, sometimes more.  If you are well beyond two weeks, then something may be amiss.


Trust & Will Lawsuits Meets the California Evidence Code

Posted in Litigation, Podcasts

A loved one dies, you find out you are disinherited, and you are left to wonder: what happened before he died that caused a drastic change in his Trust or Will?  The one person who could tell you the answer to that question is gone, so it’s now up to you to find the answer from a variety of sources, including the attorney who drafted the Trust or Will.

The problem is that many attorneys will claim the Attorney-Client Privilege applies to their conversation with the decedent and refuse to divulge the information you need for your Trust or Will lawsuit.

That’s where the California Evidence Code steps in to help you obtain the answers you need to know.  Using the following four Evidence Code sections you can get all the information you need to figure out what went wrong with your inheritance:

1.  Evidence Code 957

What the law says:

There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.

What it means:

If you are claiming a right through a deceased person, you have the right to question the drafting attorney and the Attorney-Client Privilege does not apply.  This is true whether you are questioning a Will, and Trust, or any other type of at-death transfer device.

2.  Evidence Code 959

What the law says:

There is no privilege under this article as to a communication relevant to an issue concerning the intention or competence of a client executing an attested document of which the lawyer is an attesting witness, or concerning the execution or attestation of such a document.

What it means:

Where a lawyer has witnessed a Will, or knows of the intent and possible competency of a client, then you are entitled to ask questions about the lawyer’s knowledge of that intent or competency.  If you look at most Wills, it specifically states in the witness section that the witnesses are attesting to the fact that the decedent did not lack capacity.  When a lawyer signs something like this, it stands to reason that they should answer questions about it and cannot hide behind the Attorney-Client Privilege.

3.  Evidence Code Section 960

What the law says:

There is no privilege under this article as to a communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to affect an interest in property.

What it means:

Where an attorney and a client discuss the client’s intentions in transferring property, there is no Attorney-Client Privilege covering that conversation once the client is deceased.  Again, the law wants to get to the bottom of the client’s intent and so the law cares out an exception to the Attorney-Client Privilege to do so.

4.  Evidence Code Section 1260

What the law says:

(a) Except as provided in subdivision (b), evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule:

(1) That the declarant has or has not made a will or established or amended a revocable trust.

(2) That the declarant has or has not revoked his or her will, revocable trust, or an amendment to a revocable trust.

(3) That identifies the declarant’s will, revocable trust, or an amendment to a revocable trust.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances that indicate its lack of trustworthiness.

What it means:

This is not an exception to the Attorney-Client Privilege, but rather an exception to the hearsay rule that allows a decedent’s statements to be admitted into evidence even though they are not present to testify in court (which would normally be hearsay).  There is an exception if the information is not trustworthy, which the court has great discretion to determine at time of trial.

By the way, just because these rules apply does not mean that every lawyer follows them (I know, big surprise).  We have plenty of cases where we sit down to depose and question the drafting attorney and they wrongly assert the Attorney-Client Privilege.  That requires us to go to court on a motion to compel them to answer the questions asked.  So don’t be surprised if you have to fight for this information, but with these Evidence Code sections, you have an excellent chance at winning that fight.

Top 6 Must Know Facts: How Assets are Titled in California

Posted in Litigation, Podcasts

    1. Surviving Joint Tenants Don’t Have to Share

I have seen it a thousand times, a parent puts one child on title to a bank account or a house to “help manage” that asset.  Well, the law presumes automatically that you want that asset to go 100% to the surviving joint tenant.  If that is not your intent, then DO NOT set up joint tenancies.  Surviving joint tenants do NOT have to share, so keep that in mind when setting up joint tenancy.

    2. Your Will probably Controls Nothing

Your Will only controls assets held in your individual name.  That means any Trust assets, joint tenancy assets, beneficiary designations, and pay-on-death/transfer-on-death account do not pass under the terms of your Will.

    3. Trusts are meaningless without assets

If you created a revocable Trust, but you did not transfer any asset to it, then your Trust is meaningless.  A Trust only controls assets transferred to the name of the Trustee.  Without that transfer, your Trust is a pile of documents that do you no good when you need it most.

    4. Divorce Does Not Affect Insurance Beneficiaries

Here is a shocker, in California a legal divorce will severe all sorts of joint ownership rights, but it will NOT affect the named beneficiary under a life insurance policy.  That means that if your ex-spouse is named in your insurance as a beneficiary, they WILL RECEIVE the death benefit unless you change it after the divorce.

    5. The Law Presumes You Know What You Are Doing

So many people have no idea what affect the titling of their assets have after they are gone, but the law assumes you know exactly what you are doing.  That means it is up to your children to fight about it in court if you do something you do not intend to do.  That’s where planning comes in.  Even if you do not create a Trust, you can still plan out your affairs to be sure that your intent takes affect after your death.

    6. Pay Now or Pay Later—Lawyer’s Prefer You Pay Later

Talking about planning, estate planning is far cheaper than dealing with the messy aftermath of an unplanned estate.  Many people do not engage in planning because they don’t want to pay for it.  But an unplanned estate will cost far more in the long run than the price of a good estate plan.  Where a good estate plan may cost $3,000 to $6,000; a Trust or Will lawsuit can cost $30,000 to $50,000.  Which one would you rather pay?  So pay now or pay later—and lawyers much prefer you pay later by the way.

How Do I Get What’s Rightfully Mine? California Trust and Will Lawsuits Can be a Real MESS

Posted in Litigation, Podcasts, Probate Court Litigation, Trust & Will Contests

That’s a loaded question.  It all depends on how the asset you are seeking to recover was titled.  Even though you, and probably your parent, thought that all assets were in one basket and you can simply file one document to get what is rightfully yours, you are mistaken (welcome to Trust and Will law—be prepared for confusion).  There are many ways in which assets can be titled so as to avoid the probate process.  Sounds like a good idea, but it makes lawsuits in this area a real mess.

For example, if you have an asset titled ONLY in a decedent’s name (with no one else on title or titled joint as “tenants-in-common”), then that asset falls to the probate estate and the Will controls.  If the Will is not favorable to you, then you have to file a Will contest.

If an asset is held in joint tenancy, then the asset passes automatically to the surviving joint tenant and the Will is meaningless.  If you want to contest that arrangement then you either have to challenge the original account set up or you have to bring a petition in the decedent’s probate estate and claim that it was not his intention to leave the asset to the surviving joint tenant (a claim you are required by law to prove by the higher standard of “clear and convincing” evidence).

If the assets are in a Trust, then you have to file a Trust contest, which is different from a probate Will contest.  With a Trust contest, you have to challenge either the Trust creation or the creation of a Trust amendment if one of the amendments does not favor you.

And if you have some assets in each of these different types of titling, then you have to file each of these different petitions.  It is not unusual to have three or four different petitions filed in a single case.  It can be a complicated affair and it’s easy to file the wrong claim in the wrong way and then lose out on challenging the asset you want to reclaim.

The bottom line: plan out your attack carefully.  You may only have one chance to make things right.

Legal Lack of Capacity vs. Eccentricity: What’s the difference in California?

Posted in Lack of Capacity, Podcasts

Let’s pretend you have a crazy uncle that only wears pajamas even when going to places outside his home.  He often goes to his neighbors’ houses and offers to buy all of their furniture even though the furniture is not for sale.  And he sends strange gifts to family members through the mail, which usually consist of raw fish and raw meat.  Does your uncle lack capacity to create a Trust or Will?

Maybe, maybe not, we don’t really know the answer to that questions based on the facts described in the paragraph above because under California Probate Code section 811 you can only prove lack of capacity by first establishing a mental defect.  While all the actions described certainly sound crazy, they do not establish the existence of a mental defect.  Your uncle may just be eccentric or “crazy” in the common sense of the word, but not in the medical sense.

A mental defect is typically a cognitive impairment created by conditions such as dementia or Alzheimer’s disease.  A person with dementia may not do any of the things that crazy uncle above does, and yet a dementia patient could potentially lack capacity to create a Trust or Will.

Crazy uncle on the other hand may or may not have legal capacity, it all depends on whether he has a mental defect.  He certainly has a gifting defect (sending raw fish in the mail), but until a mental defect is established, he is free to create or change his Trust or Will all he wants.

And that’s the difference between lack of capacity and just being eccentric.

Just the Fees Please: How Much Should Your California Trustee Charge?

Posted in Trustee Breach of Trust, Trustees & Beneficiaries, Videos

Most Trusts allow Trustees to pay themselves “reasonable” fees for the work they do, but what is reasonable?  That depends on the type of Trustee you have.  In this video, Keith Davidson discusses some of the issues relating to reasonable Trustee fees that can be charged by your Trustee.